Your second small plate: Fraudulent Joinder.
In Demarcet v. General Nutrition Corp., 2012 WL 525479 (W.D. La. Feb. 15, 2012), the plaintiff claimed to have suffered personal injuries after ingesting "Mega Men Sport," which he had bought at a GNC store. Plaintiff wanted to avoid federal court, so in order to destroy diversity, plaintiff needed to sue a Louisiana resident like himself. GNC, however, was a resident of another state. So what to do?
I know! Let's also sue the poor GNC store clerk who sold plaintiff the product!
Yes, that's what plaintiff's counsel did. And you can only imagine the trauma that poor hourly store clerk endured thinking that he might be held personally liable simply for selling a product for his employer.
As you can imagine, GNC removed the case to federal court, arguing that plaintiff's joinder of the employee was improper because there could be no cause of action against the employee under Louisiana law. In Louisiana, an employee cannot be held individually liable to a customer unless he has a personal duty to the customer that he breaches. The Louisiana Supreme Court has articulated a four-part test: (1) the employer must owe a duty of care to the customer, (2) the employer must have delegated this duty of care to the particular employee, (3) the employee must have breached that duty of care through his own personal fault, and (4) the duty must be personal to him and not delegated to another employee; personal liability cannot be imposed simply because of his "general administrative responsibility for performance of some function of the employment." Id. at *3 (citation omitted).
The plaintiff moved to remand the case to state court, and the federal court allowed limited discovery to be taken on the issue of the employee's duty. Analyzing the parties' evidentiary presentations, the court held that the employee had been improperly joined and that diversity jurisdiction thus was proper in the federal court:
The record establishes that defendant Lejeune was a GNC sales associate who was neither trained nor expected to extend warnings to customers regarding the potential risks posed by a product. As with all GNC sales associates, Lejeune was merely provided GNC information along with the Mega Man Sport label to answer questions or explain products to customers. GNC never advised Lejeune that he had a duty to inform customers as to how to properly take a supplement and never told him that consumers of Mega Man Sport should drink a lot of liquids when taking the product. The Mega Man Sport label does not contain any warning regarding the amount of liquids a person should consume when taking the product. . . . [T]he Court finds that Chase Lejeune was improperly joined.
Id. at *4.